Citation Nr: 0103562
Decision Date: 02/06/01 Archive Date: 02/15/01
DOCKET NO. 99-01 319 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to an effective earlier than July 15, 1997, for
the grant of service connection for schizoaffective disorder.
REPRESENTATION
Appellant represented by: James W. Stanley, Jr.,
Attorney
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
P.B. Werdal, Counsel
INTRODUCTION
The veteran served on active duty from March 1985 to November
1990.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a decision of the North Little Rock,
Arkansas, Department of Veterans Affairs (VA) Regional Office
(RO) dated in September 1998 which granted service connection
for a schizoaffective disorder, effective July 15, 1997.
FINDINGS OF FACT
1. The veteran did not file a claim for service connection
for a psychiatric disability with VA prior to December 1994.
2. The May 1995 decision by the RO, which denied service
connection for a psychiatric disorder, was not appealed.
3. The veteran's reopened claim for service connection for a
psychiatric disorder was received on July 15, 1997.
4. In September 1998 the RO granted service connection for
schizoaffective disorder and correctly assigned an effective
of July 15, 1997, the date of receipt of the veteran's claim.
CONCLUSION OF LAW
The criteria for en effective date earlier than July 15, 1997
for the grant of service connection for schizoaffective
disorder have not been met. 38 U.S.C.A. § 5110(a) (West
1991); 38 C.F.R. § 3.400 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
Received in December 1994 was the veteran's original
application service connection for a psychiatric disability,
VA Form 21-526. On the document the veteran did not respond
to the question as to whether he had previously filed a claim
for VA benefits. He did indicate treatment at the Arkansas
State Hospital (ASH) in September 1991 and at a VA facility
in November 1994. Later in December 1994 the RO requested
the veteran to provide copies of records of treatment from
the ASH for the period he was hospitalized there in 1991.
The letter contained the following:
This evidence should be submitted as soon
as possible, preferably within 60 days.
If it is not received in VA within one
year from the date of this letter,
benefits to which entitlement is
established may not be paid for any
period prior to the date of its receipt.
No response was received. In January 1995 a VA medical
facility informed the RO that the veteran had failed to
report for a scheduled VA psychiatric examination. Received
in January 1995 was copy of a VA discharge summary relative
to a November 1994 hospitalization for bipolar disorder,
manic phase, with a Global Assessment of Functioning (GAF)
score of 45. The clinical history indicated that the veteran
had been hospitalized for a bipolar disorder at ASH three
years earlier. The summary contains no reference regarding
competency.
In May 1995, the RO denied entitlement to service connection
for a bipolar disorder and depression. The veteran was
notified of that decision and of his appellate rights in May
1995. The notification was mailed to the veteran's current
address of record. The veteran did not appeal this decision.
Received in March and October 1996 were documents relative to
a claim for benefits from the Social SecurityAdministration
(SSA).
Received on July 15, 1997 was the veteran's Application for
Compensation or Pension, VA Form 21-526 in which his claim
included bipolar disorder, cyclic with psychosis,
schizophrenia, and psychotic depression. He indicated that
he had previously filed a claim for VA hospitalization or
medical care. In conjunction with his claim he submitted
release of information forms which show private psychiatric
treatment from 1991 to the present
Among the development conducted by the RO in conjunction with
the claim was a September 1997 VA psychiatric examination.
At that time the veteran indicated that he was not currently
receiving psychiatric treatment. The examiner diagnosed
schizoaffective disorder, and concluded that the veteran had
a GAF score of 42.
Non-VA medical records, which were received in August 1997
and August 1998, include a report from the ASH relative to
the veteran's September 1991 hospitalization. The report
notes the veteran was brought to the hospital following the
issuance of an order for evaluation from the probate court
following his arrest for running naked down a highway. The
report also notes this was the veteran's first psychiatric
treatment, although his family reported episodes of
depression in his past. The discharge diagnosis was bipolar
disorder, manic. A copy of the September 1991, probate court
Order for Evaluation reveals the veteran was to be
transported to ASH, and involuntarily admitted. Records from
the Western Arkansas Counseling and Guidance Center include
records prepared in conjunction with the veteran's September
1991 incarceration prior to his hospitalization at ASH, and a
March 1992 report that indicates the psychiatrist believed
the veteran suffered a reactive depression related to his
difficulty obtaining employment, and attempted to have the
veteran explore his rehabilitation potential with a case
manager. Private medical records dated in 1996 and 1997 show
a diagnosis as schizophrenia, paranoid, with psychotic
depression in 1996, and schizophrenia, schizoaffective mood
type in 1997, and that the veteran had at least an eight-year
history of mental illness.
The veteran testified at a hearing before a hearing officer
in August 1998 that while in the Navy he had behavioral
problems and was seen by a psychiatrist, who concluded he had
no psychiatric disability. He received an honorable
discharge from active duty, then was unsuccessful in his
attempts to obtain and maintain employment. He began hearing
voices and having visual hallucinations, was depressed, had
problems sleeping, and avoided seeing family and friends. In
September 1991 he saw a doctor from Western Arkansas Guidance
Center. The veteran was then committed involuntarily to ASH,
where he was hospitalized for an extended period. The
veteran stated at page 18 of the transcript of the August
1998 hearing that when his claim was denied in 1995 he did
not know what was going on. He said he would get a letter
and it would say he needed to locate people in his command,
and he would just burn it because it would bring back
memories with which he did not want to deal. He added that
there were times he lost contact with reality. His spouse
testified that she noticed an abrupt change in the veteran,
and sought assistance from a Navy chaplain, who told her the
veteran had to seek help for himself; when he did so, she
reported the counseling sessions did not help him. She and
the veteran tried to get psychiatric help for the veteran but
were unable to do so until she pushed to have him committed
in September 1991.
The veteran's spouse reported that she filed a claim for
service connection in 1991 when the veteran went to ASH, but
although she had no idea what happened to that paperwork, she
did recall receiving a paper saying the veteran was too young
for disability. Regarding the claim denied in 1995, the
veteran's spouse testified at that she never received
anything to appeal. She indicated that she later found out
the veteran was throwing stuff away. He would get the mail
before she would, and if the mail brought back any bad
memories, it would go in the trash, and she would never see
it.
Received in August 1998 was a copy of a decision from the SSA
granting his claim for disability benefits. The decision
identified the disabling condition as schizoaffective
disorder with manic and depressive mood swings and that the
veteran was disabled since September 1991.
In a rating decision dated in September 1998, service
connection was granted for schizoaffective disorder. The
disability was rated 100 percent disabling, effective from
July 15, 1997, which was the date of receipt of the veteran's
claim to reopen.
A hearing was scheduled before the undersigned by video
teleconference. The hearing was held in September 2000. The
veteran asserted that shortly after he left active duty he
began losing contact with reality, hearing voices, and that
his condition was so severe he was committed to a state
hospital by a probate judge in September 1991. He reported
that his wife had told him that someone came to ASH from the
VA hospital and he was possibly entitled to VA benefits. He
then went to a VA representative while hospitalized and tried
to file a claim in 1991. The veteran said he recalls
receiving no paperwork, notices, claims or decisions on the
1991 claim.
The veteran further testified that he signed a claim form in
1994, but does not recall receiving a decision on that claim
in 1995. He explained that at that time he was withdrawn
from reality, society, and had been hospitalized at the VA in
1994, and then again in 1995 or 1996. He stated he was using
psychotropic medications, but was still suffering psychiatric
symptoms. He stated that he was not competent to take care
of the affairs of his life in 1994, 1995 or 1996, but did not
have a representative handling such matters at that time.
The veteran's spouse testified that she noticed a change in
the veteran shortly before he left service. He would not eat
or sleep, and started hearing voices and seeing things. He
was unable to complete a sentence or a project around the
house, and preached a lot. She had him committed to ASH by a
probate court within one year of separation from active duty,
and then again in 1994 he had to be hospitalized at a VA
facility. With regard to a claim filed in 1991, the
veteran's spouse testified that when the veteran was in ASH
she talked to one of the nurses, who referred her to someone
who the veteran's spouse said was a VA representative who was
at the hospital. When the veteran's spouse tried to discuss
the veteran's case with the VA representative, he told her he
could not do so because she did not have power of attorney
from her husband; he said he would go see the veteran to file
paperwork. She added that the paperwork was never filed
because the VA representative never went to see the veteran.
She also testified that in 1991, after the veteran's release
from the hospital, she and the veteran went to the Mena,
Arkansas, area and the veteran filed and signed the paperwork
for a claim. She stated that she filled out the paperwork,
but that he signed it and they turned it over to "the rep."
She does not know what happened to it, as she did not receive
any kind of a decision on that 1991 claim. Regarding the
claim filed in 1994, the veteran's spouse said she never
received any kind of a denial of that claim. She added that
their address in 1995 was the same as their current address,
and she does not recall having received any response to the
1994 claim.
Analysis
The veteran seeks an effective date earlier than July 15,
1997, asserting that he filed a claim in 1991. He also
states that the December 1994 claim is still pending because
he either did not receive the notice of denial and appellate
rights mailed to his home address in May 1995, or if he
received it he was so incapacitated by his psychiatric
disability that he was unable to pursue an appeal of that
denial. It is also asserted by his representative that
informal claims were filed and there was considerable
evidence of the presence of disability of record within one
year before July 1997 and consideration of 38 C.F.R. §§ 3.157
and 3.155 was requested (2000).
In general, except as otherwise provided, the effective date
of an evaluation and award of pension, compensation or
dependency and indemnity compensation based on an original
claim, a claim reopened after final disallowance, or a claim
for increase will be the date of receipt of the claim or the
date entitlement arose, whichever is the later. 38 U.S.C.A.
§ 5110(a) (West 1991); 38 C.F.R. § 3.400 (2000).
The effective date for a reopened claim shall be fixed in
accordance with facts found but shall not be earlier than the
date of receipt of application therefore. 38 U.S.C.A.
§ 5110(a); 38 C.F.R. §§ 3.400.
An informal claim is any communication or action indicating
an intent to apply for one or more benefits under the laws
administered by VA, from a claimant, his or her duly
authorized representative, a Member of Congress, or some
person acting as next friend of a claimant who is not sui
juris. 38 C.F.R. § 3.155 (2000).
Effective date of pension or compensation benefits, if
otherwise in order, will be the date of receipt of a claim or
the date when entitlement arose, whichever is the later. A
report of examination or hospitalization which meets the
requirements of this section will be accepted as an informal
claim for benefits under an existing law or for benefits
under a liberalizing law or Department of Veterans Affairs
issue, if the report relates to a disability which may
establish entitlement. Acceptance of a report of examination
or treatment as a claim for increase or to reopen is subject
to the requirements of Sec. 3.114 with respect to action on
Department of Veterans Affairs initiative or at the request
of the claimant and the payment of retroactive benefits from
the date of the report or for a period of 1 year prior to the
date of receipt of the report.
(b) Once a formal claim for pension or compensation has been
allowed or a formal claim for compensation disallowed for the
reason that the service-connected disability is not
compensable in degree, receipt of one of the following will
be accepted as an informal claim for increased benefits or an
informal claim to reopen, In addition, receipt of one of the
following will be accepted as an informal claim in the case
of a retired member of a uniformed service whose formal claim
for pension or compensation has been disallowed because of
receipt of retirement pay. The evidence listed will also be
accepted as an informal claim for pension previously denied
for the reason the disability was not permanently and totally
disabling.
(1) Report of examination or hospitalization by Department of
Veterans Affairs or uniformed services. The date of
outpatient or hospital examination or date of admission to a
VA or uniformed services hospital will be accepted as the
date of receipt of a claim. The date of a uniformed service
examination which is the basis for granting severance pay to
a former member of the Armed Forces on the temporary
disability retired list will be accepted as the date of
receipt of claim. The date of admission to a non-VA hospital
where a veteran was maintained at VA expense will be accepted
as the date of receipt of a claim, if VA maintenance was
previously authorized; but if VA maintenance was authorized
subsequent to admission, the date VA received notice of
admission will be accepted. The provisions of this paragraph
apply only when such reports relate to examination or
treatment of a disability for which service-connection has
previously been established or when a claim specifying the
benefit sought is received within one year from the date of
such examination, treatment or hospital admission.
(2) Evidence from a private physician or layman. The date of
receipt of such evidence will be accepted when the evidence
furnished by or in behalf of the claimant is within the
competence of the physician or lay person and shows the
reasonable probability of entitlement to benefits. 38 C.F.R.
§ 3.157.
Initially, the Board notes that as set forth above 38 C.F.R.
§ 3.157 is not applicable in the veteran's case. 38 C.F.R. §
3.157(b).
The Board has considered the contentions that claims were
filed in 1991. However, there is no official record to
support this assertion. As there is no indication in VA
records that VA received a claim on the veteran's behalf
before 1994, the Board finds no support for the statement
that claims were filed in 1991.
The veteran asserts he did not receive the May 1995 letter
enclosing a copy of the rating decision issued in response to
his December 1994 claim. There is no indication in the file,
however, that the letter was returned to the RO by the United
States Postal Service as undeliverable. The address that
appears in the letter, which is presumably the same address
to which the letter was mailed, is the address provided by
the veteran on his December 1994 claim.
There is no evidence that the veteran furnished a different
address at any time after that claim was filed. Furthermore,
there is no indication that anyone inquired on the veteran's
behalf as to the status of the December 1994 claim.
As the United States Court of Appeals for Veterans Claims
held in Woods v. Gober, No. 98-2095 (U.S. Vet. App. Dec. 15,
2000), absent evidence that a claimant notified VA of a
change of address and absent evidence that any notice sent to
the claimant at his last known address was returned as
deliverable, VA is entitled to rely on the address provided.
The appellant's assertions that he did not receive the notice
are insufficient to rebut the presumption of regularity.
Schoolman v. West, 12 Vet. App. 307, 310 (1999). Therefore,
the Board finds that the testimony that he did not receive
notice of the 1995 rating decision denying his claim is not
the clear and convincing evidence required to rebut the
presumption of regularity.
The veteran states his subsequently service-connected
psychiatric disability rendered him unable to understand or
respond to the VA's correspondence in 1994 and 1995, and he
should not be held accountable for not acting upon that
correspondence. In this regard the medical evidence on file
at that time does not indicate that the veteran was
incompetent.
The Board finds that the veteran was duly notified of the May
1995 denial and informed of his appellate rights. He did not
appeal that decision. Thus, the May 1995 rating decision
denying service connection for a psychiatric disability is
final. 38 U.S.C.A. § 7105 (West 1991).
The law regarding effective dates is clearly set forth. The
effective date for a reopened claim shall be fixed in
accordance with facts found but shall not be earlier than the
date of receipt of application therefore. 38 U.S.C.A.
§ 5110(a); 38 C.F.R. §§ 3.400(q) (r).
It has been asserted that the evidence shows the presence of
informal claims. In this regard, received in 1996 were
documents relative to a claim for SSA benefits. These
documents do not reflect an intent on the part of the veteran
to apply for compensation benefits for his psychiatric
illness. In conjunction with the July 1997 reopened claim,
the veteran submitted private medical records showing
treatment for a psychosis beginning in September 1991, within
a year following his discharge from active duty. However,
even assuming said documents were informal claim, any
effective date would be the date of receipt. These documents
were received in August 1997 and in 1998, subsequent to the
current effective date.
In September 1998 the RO granted service connection for
schizoaffective disorder, effective from July 15, 1997, the
date of receipt of the veteran's claim. The Board concurs
with this determination. The Board finds that the
preponderance of the evidence is against the veteran's claim.
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (2000). Among other things, this law
eliminates the concept of a well-grounded claim, redefines
the obligations of the VA with respect to the duty to assist.
The RO has not had the opportunity to review the veteran's
claim in conjunction with the new legislation. However, the
Board finds that all pertinent records are on file and the
veteran has been informed of the requirements for an earlier
effective date. Accordingly, the Board finds that the
veteran has not been prejudiced by this decision. Bernard v.
Brown, 4 Vet.App. 384 (1993).
ORDER
An effective date earlier than July 15, 1997, for the award
of service connection for schizoaffective disorder is not
warranted, and the appeal is denied.
ROBERT P. REGAN
Member, Board of Veterans' Appeals